Waters v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
NAY 1 b 2022
LESTER WATERS,JR., 5:21-CV-5067-CBK
Petitioner,
vs.
UNITED STATES OF AMERICA, MEMORANDUM AND ORDER
Respondent.
I. BACKGROUND
Lester Waters, Jr.("petitioner") was found guilty by a jury of his peers oftwo
counts of Assault with a Dangerous Weapon, in violation of 18 U.S.C. §§ 113(a)(3),
1153; two counts of Assault Resulting in Serious Bodily Injury, violative of 18 U.S.C.
§§ 113(a)(6), 1153; and two counts of Discharging, Brandishing, or Possessing a Firearm
During and in Relation to a Crime of Violence, pursuant to 18 U.S.C. §§
934(c)(l)(A)(iii). 5:18-CR-50015-JLV ("C.R."),^ doc. 153. United States District Court
Judge Jeffrey Viken sentenced Mr. Waters to time served on the Assault with a
Dangerous Weapon convictions; time served on the Assault Resulting in Serious Bodily
Injury convictions; and 120 months on each of the Discharging, Brandishing, or
Possessing a Firearm During and in Relation to a Crime of Violence convictions,
consecutive to each other and to all other sentences, followed by three years of
supervised release on all counts, to run concurrently. C.R. doc. 281. The petitioner is
currently incarcerated at Federal Correctional Institution Big Spring, in Texas, with an
expected release date of August 14, 2037.
During the underlying criminal proceedings, the petitioner wound his way through
six lawyers, and ultimately representing himselfpro se at times. Prior to trial, the
'References to the underlying criminal proceedings are referred to as "C.R."
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defendant's counsel moved to suppress statements Waters provided to law enforcement
who arrived on scene after he shot and grievously injured Elgie Iron Bear and Charles
Janis. C.R. doc. 55. Following an evidentiary hearing, United States Magistrate Judge
Daneta Wollman submitted her Report and Recommendation granting in part, denying in
part, the petitioner's motion to suppress. C.R. doc. 87. Judge Viken adopted the Report
and Recommendation in full. C.R. doc. 96.
With pretrial motions complete, Mr. Waters proceeded to trial, where he was
convicted on all six counts. Following the trial. Waters moved,pro se, for a new trial,
pursuant to Rule 33 ofthe Federal Rules of Criminal Procedure. C.R. doc. 192. The
petitioner would also file a motion to dismiss the discharging. Brandishing, or Possessing
a Firearm During and in Relation to a Crime of Violence convictions. C.R. doc. 195.
However, before this Court could rule on these pending motions, Mr. Waters filed an
interlocutory appeal with the United States Court of Appeals for the Eighth Circuit, C.R.
doc. 202, which was swiftly dismissed for lack ofjurisdiction. C.R. docs. 205, 206. Not
deterred. Waters would again seek an interlocutory appeal. C.R. doc. 246. And again,
the Circuit Court denied the appeal for lack ofjurisdiction. C.R. docs. 250, 251. Once
this Court again had jurisdiction over the matter, it denied, in an exhaustion
Memorandum and Order, the petitioner's motions for a new trial and motion to dismiss.
C.R. doc. 253.
After this Court sentenced Waters, the appellate court finally had jurisdiction to
entertain his appeal. C.R. docs, 282, 284. Finally holding jurisdiction, the Eighth Circuit
affirmed Waters' conviction. United States v. Waters. 2022 WL 351194(8th Cir. Feb. 7,
2022)(per curiam).
However, while his appeal was pending before the Eighth Circuit, the petitioner
filed this Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence.
Doc. 1. Because the appellate court has released its opinion in this matter, this Court may
now properly assess the merits ofthe petitioner's three claims:(1)ineffective assistance
ofcounsel on the part oftrial counsel Robert Rohl, in violation of Waters' Sixth
Amendment Rights under the United States Constitution, as set forth in Strickland v.
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Washington. 466 U.S. 668(1984), and its progeny;(2)again argues that his inculpatory
statements to law enforcement were violative of his Fifth Amendment Rights under the
United States Constitution, as laid out in Miranda v. Arizona. 384 U.S. 436(1966), and
its progeny; and(3)that the United States unconstitutionally withheld evidence favorable
to him at trial. Upon initial review, all three claims should be dismissed in their entirety.
II. DISCUSSION
A. Whether Motion can be Entertained
Mr. Waters filed this motion while his direct appeal was pending. It is a well-
settled understanding that § 2255 motions cannot be entertained "while an appeal fi-om
conviction is pending." Masters v. Eide. 353 F.2d 517, 518 (8th Cir. 1965)(per curiam)
(internal citations omitted). A "federal district court and a federal court of appeals should
not attempt to assert jurisdiction over a case simultaneously." United States v. Ledbetter.
882 F.2d 1345, 1347(8th Cir. 1989)(quotins Griggs v. Provident Consumer Discount
Co.. 459 U.S. 56, 58(1982)(per curiam)). This Court does not even hold jurisdiction to
entertain such an appeal pending a direct appeal: filing an appeal "confers jurisdiction on
the court of appeals and divests the district court of its control over those aspects of the
case involved in the appeal." Id {quoting Griggs. 459 U.S. at 58).
While the petitioner improperly filed this motion while his direct appeal laid
pending, the Eighth Circuit has since denied his appeal and issued its mandate. See C.R.
docs. 296(Eighth Circuit opinion), 298(mandate). Accordingly, this Court may now
entrain Waters' petition.
B. Standard of Review
To support a claim of ineffective assistance of counsel, a two-prong test must be
met. Mr. Waters must show that his trial counsel's performance was constitutionally
deficient and that he was prejudiced as a result. Dorsev v. Vandergriff. 30 F.4th 752,757
(8th Cir. 2022). See Strickland v. Washington. 466 U.S. 668,687-96(1984). The
petitioner must prove prejudice by showing '"that there is a reasonable probability that,
but for counsel's unprofessional errors, the result ofthe proceeding would have been
different.'" Donelson v. Steele. 16 F.4th 559, 570(8th Cir. 2021)(quotins Strickland.
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466 U.S. at 694). See Fast Horse v. Class. 87 F.3d 1026, 1028 (8th Cir. 1996)("When 'it
is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice,[that] course should be followed.'")(quoting Strickland. 466 U.S. at 697).
The heavy burden of establishing ineffective assistance of counsel is on the
petitioner. Langford v. United States, 993 F.3d 633,637(8th Cir. 2021); Golinveaux v.
United States. 915 F.3d 564, 567(8th Cir. 2019). "The Sixth Amendment guarantees
reasonable competence, not perfect advocacy judged with the benefit of hindsight."
Yarborough v. Gentry. 540 U.S. 1,6(2003).
C. Whether Trial Counsel was Constitutionally Ineffective
Petitioner first levies an ineffective assistance of counsel claim against one of his
former attorneys, Robert Rohl.^ With little substantiation. Waters contends that Mr. Rohl
did not(1)pursue enough legal research during the pretrial period which could have
bolstered his self-defense for shooting the two victims;(2)calling specific witnesses to
testify at trial;(3)and offered a conclusory assertion of not "filing motions on [his]
behalfto challenge fundamental issues with [his] case;(4)and because he was not
informed of any plea deals. MOTION UNDER 28 U.S.C. § 2255 TO VACATE,Set Aside,
OR Correct Sentence, doc. 1 at 4. Each are addressed in turn.
1. Pre-Trial Lesal Research
First, the Court tackles whether Mr. Rohl was constitutionally defective for his
pretrial research. Not only does Waters fail to provide any indicia of what additional
research would have uncovered, but Rohl did clearly pursue ample research in
preparation for trial. Mr. Rohl filed a post-evidentiary hearing memorandum in support
offormer counsel John Rusch's motion to suppress audio, video, and other statements
made by the defendant to law enforcement. See C.R. doc. 83. Rohl provided forceful
analysis of binding precedent before the Magistrate Judge tasked with the underlying
suppression motion. However, even the most competent attorney could not succeed
when up against such clear binding case law to the contrary. Trial counsel also objected
^ Mr. Waters already has tried to levy an ineffective assistance of counsel claims in the underlying criminal
proceedings. See doc. 253 at 41-42, 45-47.
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to Judge Wollman's Report and Recommendation concerning the suppression motion, to
further support his client's request to exclude his prior statements to law enforcement.
C.R. doc. 91.
Rohl did not stop there in providing motions and briefing before this Court in
advance oftrial. He also submitted motions in limine and accompanying briefing
concerning the extent of victims' injuries, while also pushing against the United States'
motions in limine. C.R. doc. 108-10. Mr. Rohl also argued against the full use of
specific witnesses offered by the government, C.R. docs. Ill, 112, 121-23, and against
specific exhibits proposed by the United States, C.R. docs. 130-32. No further pretrial
legal research would have altered the suppression motion's disposition, nor would it have
bolstered the self-defense claim presented at trial by Rohl.
2. Failins to Call Unnamed Witnesses at Trial
Next, Waters makes a passing reference to Rohl's purported failure to "calling
witnesses to court to testify at [5zc] trial." Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside,or Correct Sentence, doc. 1 at 4. Who are these witnesses that Rohl
failed to call? The petitioner has not said.
This Court has already dispelled of arguments surrounding witnesses the
petitioner's trial counsel did not call. First, this Court has previously explained how the
government's witness Lance Leflwich was subpoenaed, but ultimately could not be
located for trial. And as this Court has already held, "[t]he defendant's claim regarding
the absence of Mr. Leftwich is without merit." C.R. doc. 253 at 39. Rohl could not
conjure witnesses out of thin air. Accordingly, there was nothing more to be done
concerning Mr. Leftwich.
The petitioner has previously raised questions surrounding Alyson CaldwelTs
failure to appear for trial. And like before, this Court noted that Waters' "assertions do
not match up with the record before the court." Id. at 42. This matter can easily be
disposed because Caldwell was called by Rohl to testify. However,the United States
Marshals Service could not locate her prior to trial. Mr. Rohl was not tasked with being a
bounty hunter in addition to his tasks as trial counsel; accordingly, the fact Caldwell
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could not be located does not offer a modicum of weight towards an ineffective
assistance of counsel claim.
Next, straining to find a semblance of argument behind Waters' barebones
argument, the Court turns again to Tammy Eagle Bull. See id. at 43^5. Ms. Eagle Bull
was ultimately not called to testify by Mr. Rohl. Because the petitioner fails to explain
what Eagle Bull would testify to, how it would affect the trial, or simply whether this is
the mysterious witness Rohl failed to call, this claim cannot go forward. Similar logic
applies to Rico Iron Bear. See id. at 45^6.
3. Not Filins Motions on "Fundamental Issues"in Case
The petitioner also takes issue with Mr. Rohl not filing issues concerning
"fundamental issues with [his] case." Motion Under 28 U.S.C. § 2255 TO Vacate,Set
Aside,or Correct Sentence, doc. 1 at 4. However, again. Waters does not state what
such fundamental issues with his case were. The Eighth Circuit has already soundly
rejected challenges concerning the composition of the jury pool, whether jurors
committed prejudicial misconduct, whether witnesses perjured themselves, entitlement to
less-included offenses before the jury, whether the government failed to disclose material
evidence, or whether he can challenge his own evidence from trial. Waters, 2022 WL
351194, at *1. Without explaining what other fundamental issues, he now takes issue
with, this ground for relief should be denied.
4. Not Beins Offered a Plea Deal
Finally, for this claim the petitioner argues Mr. Rohl was ineffective for failing to
inform him of any plea deals. MOTION Under 28 U.S.C. § 2255 to Vacate,Set Aside,
OR Correct Sentence, doc. 1 at 4. Waters fails to explain how Rohl was deceptive in
any possible plea negotiations, or in a failure to secure a favorable plea. This also must
be measured against the strong case possessed by the government, a case that ultimately
led to convictions on all counts. Further,"[a] criminal defendant has no constitutional
right to bargain for a plea arrangement with the government." Stokes v. Armontrout. 851
F.2d 1085, 1089 (8th Cir. 1988)(citins Weatherford v. Bursev. 429 U.S. 545, 561
(1977)). Accordingly, this claim has no merit.
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D. Recycle Argument Concerning Miranda Rights
Mr. Waters' second claim for relief rests not on ineffective assistance of counsel,
but on a purported violation of his privilege against self-incrimination, as explained in
Miranda v. Arizona, 384 U.S. 436(1966), and its progeny. See MOTION UNDER 28
U.S.C. § 2255 TO Vacate,Set Aside,or Correct Sentence, doc. 1 at 5-6. However,
this Court is foreclosed from exploring this matter further: the appellate court has already
"conclude[d] that the challenged statements were admissible," and that they "were made
on his own initiative," some being "related to public safety," and "others were responses
to requests for clarification." Waters, 2022 WL 351194, at 1. In the face of binding
commands from the Eighth Circuit in this matter, the Court's analysis must stop here and
hold that this claim should be denied.
E. Rehashed Argument About Purported Government Withholding of Evidence
Finally, the petitioner argues that his conviction was "obtained by the
unconstitutional failure ofthe prosecution to disclose to the defendant evidence
favorable" to him. MOTION Under 28 U.S.C. § 2255 TO Vacate,Set Aside,or
Correct Sentence, doc. 1 at 6. But like his second ground for relief, supra,the Eighth
Circuit already foreclosed this issue on direct appeal. See Waters, 2022 WL 351194, at
*1 ("He has not raised a colorable challenge to ... have the government disclose
anything else."). This claim also must fall.
III. CONCLUSION
While the petitioner was too hasty in petitioning this Court for collateral review,
all three claims for relief have been analyzed on their merits following the Eighth
Circuit's opinion in this matter. Because(1)trial counsel Rohl was constitutionally
sound in his representation;(2)statements made to law enforcement by the petitioner
were not violative of his Fifth Amendment rights; and (3) because there is no meaningful
showing of evidence that was unconstitutionally withheld by the United States at trial,
Watesr' motion should be denied on initial review.
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IT IS HEREBY ORDERED that petitioner Lester Waters, Jr.'s Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, doc. I, is denied.
TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT:
Petitioner was found guilty oftwo counts of Assault with a Dangerous Weapon;
two counts of Assault Resulting in Serious Bodily Injury; and two counts of Discharging,
Brandishing, or Possessing a Firearm During and in Relation to a Crime of Violence. Mr.
Lester Watesr, Jr. was sentenced to time served on the Assault with a Dangerous Weapon
and Assault Resulting in Serious Bodily Injury convictions, followed by three years of
supervised release to run concurrently to each other and all other sentences of supervised
release; 120 months imprisonment for the first Discharging, Brandishing, or Possessing a
Firearm During and in Relation to a Crime of Violence conviction, followed by three
years of supervised release to run concurrent to all other sentences of supervised release;
and 120 months imprisonment on the second Discharging, Brandishing, or Possessing a
Firearm During and in Relation to a Crime of Violence conviction, followed by three
years of supervised release to run concurrent to all other sentences of supervised release.
Her direct appeal following sentencing was denied. Petitioner filed a Motion to Vacate,
Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, contending that he received
ineffective assistance of counsel; that his conviction was obtained by violation of his
rights against the Fifth Amendment to the United States Constitution; and that his
conviction was obtained through the unconstitutional failure ofthe prosecution to
disclose to him favorable evidence, violative of his Fifth Amendment rights. I summarily
denied the Motion to Vacate pursuant to Rule 4 of the Rules Governing Section 2255
Proceedings for the United States District Courts.
Pursuant to 28 U.S.C. § 2253, a certificate of appealability may issue only ifthe
applicant has made a substantial showing ofthe denial of a constitutional right.
Petitioner did not and has not made a substantial showing ofthe denial of a constitutional
right.
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IT IS HEREBY CERTIFIED that there does not exist probable cause of an appealable
issue with respect to the Court's order denying petitioner's § 2255 motion. Any
application for a certificate of appealability is denied. This is no way hampers the
petitioner's ability to request issuance of the certificate by a United States Circuit Judge
pursuant to Federal Rule of Appellate Procedure 22.
DATED this 16-t of May,2022
BY THE COURT;
CHARLES B. KORNMANN
United States District Judge
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